In re A.M.-1 ( 2023 )

FILED
May 16, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.M.-1
No. 22-659 (Harrison County 21-JA-182-1)
MEMORANDUM DECISION
Petitioner Father A.M.-21 appeals the Circuit Court of Harrison County’s July 12, 2022,
order terminating his parental, custodial, and guardianship rights to A.M.-1.2 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
The DHHR filed an abuse and neglect petition in July of 2021 alleging that the parents
were homeless, abused substances, and engaged in domestic violence. According to the DHHR,
petitioner and the mother were “fighting in front of the child” and, “when they fight, . . . it turns
physical.” The petition also alleged that the parents had recently been arrested for felony child
neglect creating risk of injury after the parents and child were found parked at a fuel pump asleep
in their vehicle, which contained fentanyl and other drugs. Finally, the petition alleged that
petitioner’s rights to an older child had previously been involuntarily terminated as a result of his
substance abuse, abandonment of that child, and “failure to fully participate in services offered by
the []DHHR.”
In September of 2021, petitioner stipulated to several allegations in the petition, including
that he suffered a substance abuse addiction, he “subjected the juvenile, [A.M.-1], to unsafe
conditions” and that his parental rights to an older child were involuntarily terminated in 2018 for
issues that remained uncorrected. Based on his stipulation, the court adjudicated petitioner of
neglecting the child. The following month, the court granted petitioner a post-adjudicatory
improvement period. As terms and conditions of the improvement period, petitioner participated
in parenting education, adult life skills services, drug screens, visitation with the child, and
individual and couple’s counseling.
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Petitioner appears by counsel Dean R. Morgan. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Lee Niezgoda. Jenna L. Robey appears as the child’s guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e). Additionally, because the child and petitioner share the same initials, we
have included numerals to differentiate them.
1
In March of 2022, the multidisciplinary team was informed that the mother appeared for
services with a black eye earlier that month. According to one provider, the mother claimed the
bruising was an accident and that she did not wish to speak about it. When a second provider asked
the mother if petitioner caused the bruising, the mother responded that “it isn’t the first time.” The
following month, the court held a status hearing, during which petitioner denied that any domestic
violence occurred between the parents. At that time, the court noted that petitioner was “currently
in anger management classes at the day report center” and was scheduled to “begin domestic
violence classes” there as well.
At the final dispositional hearing in May of 2022, petitioner admitted that, as recently as
the week prior, he denied that domestic violence occurred. However, petitioner testified that “it
just occurred to [him] that [he was] guilty of a lot of different types of domestic violence.” Despite
this apparent admission, petitioner nonetheless denied that he caused the mother’s black eye and
claimed that he had engaged only in “pushing or shoving” during the course of the parents’ ten-
year relationship. The court also heard evidence that petitioner was involved in a traffic stop in
May of 2022 during which drug paraphernalia was confiscated. Petitioner admitted that law
enforcement took a “needle” from the car’s glove box but denied that it was drug paraphernalia.
Based on the testimony, the court found that “[n]either of the [parents] have admitted to
domestic violence within the relationship . . . , nor have they admitted to the impact witness[ing]
domestic violence has on a child.” The court further found that the evidence established that
domestic violence had been an ongoing issue in the parent’s relationship, citing an incident in 2021
where petitioner ran over the mother with a trailer, “causing injuries to [the mother’s] hip, leg[,]
and chest, and culminating in a broken collarbone.” According to the court, despite the DHHR’s
offer of extensive services, petitioner simply “failed to acknowledge the significant domestic
violence that is present and ongoing in the relationship.” The court further concluded that although
petitioner participated in services, he did not “mak[e] any changes to address the issues of neglect,
which are present in the home due to [his] failure to acknowledge the problem.” As such, the court
found that there was no reasonable likelihood that petitioner could substantially correct the
conditions of neglect in the near future and that termination of his rights was necessary for the
child’s welfare. The court then terminated petitioner’s parental, custodial, and guardianship rights
to the child.3 It is from the dispositional order that petitioner appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, petitioner raises only one
assignment of error in which he asserts that it was error to terminate his rights to the child.
Petitioner advances several arguments in support of this assignment of error. First, petitioner
claims that the court erred in concluding that there was no reasonable likelihood that the conditions
of neglect could be substantially corrected in the near future, basing this argument on his erroneous
assertion that “[d]omestic abuse was not part of this original petition . . . and no issues or concerns
3
The mother’s parental rights were also terminated, and the permanency plan for the child
is adoption in the current placement.
2
regarding domestic abuse had arisen prior to March, 2022.” This is simply incorrect, as the
DHHR’s petition clearly alleged that fights between petitioner and the mother “turn[ed] physical.”
Petitioner relies on this faulty recitation of the record to argue that the court’s conclusion that the
conditions of neglect could not be corrected was in error because “[t]he ‘conditions of neglect’
with which the [c]ourt must concern itself are those that gave rise to the initiation of the
proceedings.” Because petitioner’s argument that the petition did not include allegations of
domestic violence lacks a basis in the record, he is not entitled to relief.
Moreover, petitioner argues that he did, in fact, correct the conditions of neglect at issue
because he produced forty-six negative drug screens during the proceedings and was participating
in services. However, this argument ignores the fact that petitioner was involved in a traffic stop
in which a law enforcement officer confiscated drug paraphernalia the same month as the
dispositional hearing. This argument also ignores the fact that the circuit court concluded that
petitioner failed to acknowledge the domestic violence in his relationship with the mother, which
rendered him incapable of correcting his failure to provide the child with a safe environment. In
re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (“Failure to acknowledge the
existence of the problem . . . results in making the problem untreatable and in making an
improvement period an exercise in futility at the child’s expense.”). Accordingly, petitioner’s
arguments must fail.
Next, petitioner argues that it was error to terminate his rights when the court could have
“suspended” his rights under West Virginia Code § 49-4-604(c)(5), which permits a court to
“commit the child temporarily to the care, custody, and control of the department, a licensed
private child welfare agency, or a suitable person who may be appointed guardian by the court.”
We find this argument unavailing, as West Virginia Code § 49-4-604(c)(5) provides only for
temporary measures. We agree with the circuit court’s finding that the child’s tender years and
need for continuity in caretakers required termination, as the record demonstrates that the child
was only two years old at the time of the dispositional hearing. We have explained,
“[c]ourts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be
seriously threatened, and this is particularly applicable to children under the age of
three years who are more susceptible to illness, need consistent close interaction
with fully committed adults, and are likely to have their emotional and physical
development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4.
Petitioner lastly argues that termination of his rights actually harms the child, as it “destroys
[the] benefit of the natural relationship between the child and father.” While it is true that the
court’s order severed this relationship, petitioner ignores the fact that it was his conduct that
necessitated this result, and he is entitled to no relief in regard to this argument. Because the court
made the findings necessary to terminate petitioner’s parental rights upon ample evidence, we find
no error. See W. Va. Code § 49-4-604(c)(6) (permitting a circuit court to terminate parental,
custodial, and guardianship rights upon finding that there is no reasonable likelihood that the
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conditions of neglect can be substantially corrected in the near future and when necessary for the
child’s welfare); see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)
(permitting termination of parental, custodial, and guardianship rights “without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect . . . can be substantially corrected”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
12, 2022, order is hereby affirmed.
Affirmed.
ISSUED: May 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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